Howland v. Newark Cemetery Ass'n , 1873 N.Y. App. Div. LEXIS 169 ( 1873 )

By the Court,

Talcott, J.

This case is, in its main features, like that of Cramer v. Benton, argued at the same time, and growing out of the mistake in the description contained in the partition deeds made between Lewis J. Benton and John W. Benton in the year 1846. The result of the two cases at the circuit, however, having been precisely opposite. In the present case, the justice who tried the case directed a verdict for the defendant, while the justice who tried the other action directed a verdict for the plaintiff. We have, after full consideration, affirmed the ruling of the justice who tried the other case directing a verdict for the plaintiff, ^(a)

Our views on the main questions involved may be found in our opinion in the other case. There seems to be nothing in this case calling for any additional observations, except as to the exclusion of the evidence offered by the defendant to show that he entered into possession of the premises in dispute, under a contract with John W. Benton, in the spring of 1849, for the purchase thereof from Benton, which was consummated by a subsequent conveyance from Benton, and to show the acts characterizing the possession of the defendant. The evidence was offered with a view of establishing an adverse possession of the premises in controversy for more than twenty years before the commencement of this action, which was in the fall of 1869. This evidence was rejected, apparently because the deed to the defendants was not actually executed till a period within the twenty years. But it is well settled that the possession of a party who enters under an executory contract to purchase and subsequently obtains his deed in pursuance of the contract, is adverse from the time of the entry, as to all the world except the vendor. And the party so entering may defend on his possession, provided twenty years have elapsed since he entered under the contract. (Clapp v. Bromagham, 9 Cowen, 531. Whitney v. Wight, 15 Wend. 172.) So, also, the possession of the vendees under an executory contract for purchase is the possession of the vendors. And a continuous adverse possession under the same title, though by different parties, is sufficient. (Simpson v. Downing, 23 Wend. 320, and cases cited.) As to the point that the defendants must be supposed to have known or suspected that the title was invalid, see Humbert v. Rector, &c., of Trinity Church, (24 Wend. 587 ;) Munro v. Merchant, (26 Barb. 383, op. 402.)

So, too, the defendants should have been permitted to prove the mistake in the, deed, notwithstanding the statute of limitations, and the defence, limited only to this parcel of land, and not requiring any reformation of' the deed, may be made between these parties. This seems to be the effect of the case of Bartlett v. Judd, ( 21N. Y. 200,) which was not called to our attention when the case' of Cramer v. Benton was first before the court.

[Fourth Department, General Term, at Buffalo, January 7, 1873.

New trial granted, costs to abide the event.

Mullin and Talcott, Justices.]

(a) See Cramer v. Benton, (64 Barb. 522.)